Charmyn J. Calderone, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 17, 1998
01976639 (E.E.O.C. Nov. 17, 1998)

01976639

11-17-1998

Charmyn J. Calderone, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Charmyn J. Calderone v. United States Postal Service

01976639

November 17, 1998

Charmyn J. Calderone, )

Appellant, )

)

v. ) Appeal No. 01976639

) Agency No. 1E-801-0069-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The appellant timely filed an appeal with this Commission from a final

decision, dated August 6, 1997. The Commission accepts the appellant's

appeal in accordance with EEOC Order No. 960, as amended.

The appellant indicated in a June 26, 1997 letter to the agency that she

had learned from the EEO counselor that the agency closed her informal

complaint because she had not picked up the notice which the counselor

had sent her. The appellant represented she had been out of state from

May 9 through May 27, 1997 on approved leave and, therefore, could not

pick up the certified letter. The appellant also represented that this

was not the first time the agency had sent her correspondence when she

was out of town.

The final agency decision denied the appellant's request to reopen her

informal EEO complaint. The decision indicated that the appellant had

been sent a notice of final interview which was returned unclaimed to the

EEO office on May 27, 1997. The decision represented that the Postal

Service attempted delivery on two occasions, May 8 and May 13, 1997.

The decision noted that even if the appellant left town on May 9, 1997,

she could have picked up the letter before she left town. The also

agency opined that the appellant's husband should have picked up the

appellant's letter when he claimed a certified letter addressed to him

on May 19, 1997. The decision held that the husband's failure to pick

up the appellant's letter should be attributed to the appellant.

Generally, actual receipt of a document is necessary to commence the

running of a regulatory time limit. Woehr v. United States Postal

Service, EEOC Request No. 05960657 (July 3, 1997). However, a regulatory

time limit may run where due diligence is used to deliver appropriate

rights to a complainant, but the effort is unsuccessful. Id. In the

Woehr case the Commission found that it had acted with due diligence

to provide an appellant with a copy of an appeal decision by mailing

it to the appellant twice, which resulted in six attempts to deliver

the decision over a two-month time span. Therefore, the Commission

found the appellant's request for reconsideration to be untimely even

though the previous decision was ultimately returned to the Commission

by the Postal Service as unclaimed. In reaching this result, the

Commission distinguished the decisions reached in two prior cases,

Hoffman v. United States Postal Service, EEOC Request No. 05950172 (May

23, 1996), and Kellus v. United States Postal Service, EEOC Request No.

05920198 (April 20, 1992). In both of those cases, the agency sent the

notice of rights only one time.

The Commission finds that the agency did not use due diligence in this

case to notify the appellant of her right to file a formal complaint.

The agency sent only one notice and then did nothing more. The agency

did not attempt to send the notice a second time as the Commission did

in the Woehr case. Nor did the agency attempt to deliver the notice at

the appellant's worksite.

As to the stated reasons for the agency's decision, the agency faults

the appellant for not picking up the notice before she left town on May

9, 1997. However, the agency has not shown that it was reasonable or

even possible for the appellant to retrieve the notice from the Postal

Service between the time she received the certified mail notice and

the time she was scheduled to leave town. The agency also faults the

husband's decision not to pick up the appellant's letter and attributes

it to the appellant. However, the Commission finds it reasonable that

the husband would not accept a letter from the EEO Office knowing that

the appellant would not be available to prepare a response.

CONCLUSION

For the reasons stated above, the Commission REVERSES the agency's

administrative closure of the appellant's informal complaint and REMANDS

the informal complaint for processing as ORDERED below.

ORDER

1. The agency is ORDERED to provide the appellant with a copy of the

notice of her right to file a formal complaint in this case within 15

calendar days of the date this decision becomes final.

2. If the appellant files a formal complaint, the agency shall acknowledge

receipt of the complaint as required by 29 C.F.R. �1614.106(d).

3. Within sixty (60) calendar days of the date this decision becomes

final, the agency shall send to the Compliance Officer referenced below, a

copy of the notice of right to file a formal complaint and, if applicable,

a copy of the agency's letter of acknowledgment to appellant.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be submitted with your

request for reconsideration. The Commission will consider requests

for reconsideration filed after the deadline only in very limited

circumstances. See 29 C.F.R. �1614.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. It is the position of the Commission that you

have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. In the alternative,

you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. If you file a civil action, YOU MUST NAME

AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY

HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME

AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work.

Filing a civil action will terminate the administrative processing of

your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

November 17, 1998

______________

Date Ronnie Blumenthal, Director

Office of Federal Operations